Stop forced anal examination and forced HIV testing in Kenya

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E Gitari started this petition to Keriako Tobiko (Director of Public Prosecution) and

On February 15 2015, two men, while seated at a public Bar known as Manyatta in Diani in Kwale County, were approached by 8 police officers—including the Officer Commanding Diani Police Station. The police officers arrested the two men after explaining to they were investigating issues related to gay liaisons, in particular production of pornographic movies, and that they had been informed that the two men were suspected gay male adults.

The men were escorted to the police station, subjected to interrogation and detained for a period of 4 days. While under police custody, police officer Salim Yunis first attempted to forcefully have the two men examined at the Diani Dispensary to prove that they were practicing ‘unnatural sex’ as envisaged under section 162 of the penal code. The men refused to be examined.

They were then arraigned at Kwale Law Courts and charged with the offences of practicing an unnatural sex contrary to Sections of the Sexual offences Act and trafficking in obscene materials contrary to Section 181 (1)(a) of the penal code (during their detention, police had raided the house of one of the two men and found a Queer as Folk DVD series, used as evidence for the obscene material charge). The police then made an application before presiding magistrate Hon. Njagi to have the two men subjected to a medical examination to prove they had anal sex with each other contrary to Section 162 of the penal code.

The Hon. Mrs Njagi ordered a medical examination be conducted on the two men who were referred to Coast Provincial General Hospital while under police custody and subjected to an anal exam, HIV testing and other blood related tests. The two men were forced to sign consent forms in adherence to the hospital's policy for the exams to be undertaken. They were forced to strip naked, lay facing up, lift their legs in the air and cough as medical personnel inserted fingers and metallic objects up their rectum.

The two men were subjected to this inhumane, torturous and degrading treatment under the watch of hospital personnel and the police. They were later charged for committing ‘unnatural offences’ and detained for months awaiting bail terms worth Kenya Shillings 200,000 (USD 2,000) per accused person.

As a community and defenders of human rights, the National Gay and Lesbian Human Rights Commission (NGLHRC) finds the actions and conditions that the two men went through:

1. constitute cruel, inhumane and degrading treatment forbidden under Article 25 of the Constitution of Kenya2. amount to torture under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (which has been ratified by Kenya) and,3. are a breach of medical ethics, in Kenya and internationally, while having no probative evidentiary value in criminal prosecutions

NGLHRC petitioned the High Court seeking to resolve whether it was constitutional to subject the two males to anal examination and whether the results of the examination could be admitted as evidence against them. In June 2016, the Kenya High Court of Mombasa sided with police officers involved in this case. Finding that the forced anal examinations and HIV testing of the two men were legitimate means of collecting samples from suspects to prove that the two had homosexual sex; a crime in Kenya.

It also ruled that the mouth and anus are not sexual organs until 'modern science' proves otherwise. This sets a dangerous precedent and means that consenting adult heterosexuals and bisexuals engaging in oral sex or anal sex in private can also be subjected to anal testing and prosecutions for engaging in ‘unnatural sex’. NGLHRC has since appealed against this awful judgement to the Court of Appeal. However, prosecution of the two men continues with public prosecutions continuing in 2017.

Through our petition, we urge the Director of Public Prosecutions to drop all criminal charges resulting from forced testing as we proceed with querying the constitutionality of this unjust act at the Court of Appeal. The Constitution of Kenya requires that in exercising his powers, the Director of Public Prosecutions (DPP) shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process. We also ask that the office of the DPP ceases and desists from using forced anal testing and HIV testing as evidence gathering means in the prosecution of unnatural offences as these methods violate fundamental human rights.